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Minor errors in EAs no longer a reason for delay

An amendment to the Fair Work Act 2009, that was passed by Federal Parliament in early December 2018, gives the Fair Work Commission powers to approve an enterprise agreement that has been genuinely agreed to by employees but has “minor procedural or technical errors” provided that “the employees covered by the agreement were not likely to have been disadvantaged by the errors”. This includes minor errors in a Notice of Employee Representational Rights (NERR). In introducing the legislation, the Minister for Jobs and Industrial Relations explained that these amendments will overcome the “unintended, and sometimes absurd, outcomes which have caused lengthy delays” using the example of rejecting an enterprise agreement because the notice to employees at the beginning of the bargaining process was erroneously printed on company letterhead. According to the Minister, “These changes will allow agreements reached betw...

5 February 2019

Passage of time means employee with a criminal past was unfairly dismissed, despite the revelation of dishonesty

This case concerns an employee who had a criminal record prior to seeking employment with Superior Food Group Pty Ltd (the ‘Company’). The employee omitted some of these convictions on his employment application form, including the most recent and most serious conviction. Significantly, the employee had consented to, and the Company performed, a Police Check which disclosed all of his previous convictions. However, it was over one year later that the Company sought to rely on the employee’s “failure to disclose prior criminal convictions” as a ground for dismissal. The Commission explained that this cannot now be a valid reason for dismissal due to the “passage of time” and the Company’s “failure to act promptly on the information it had available”. The issue of dishonesty was also raised in this case, with it being admitted during the course of the proceedings that the employee had falsified inform...

9 January 2019

Employer pays for the dismissal of an employee who made work-related complaints

The Federal Circuit Court found that a Company had contravened s 340 of the Fair Work Act 2009 (Cth) (the ‘Act’) by terminating an employee for exercising the workplace right of making a complaint regarding her employment. The employee was dismissed after five months, which was within the probationary period. The Company did not give the employee a reason for her dismissal. Notably, the Act contains a presumption that the Company terminated the employment because of the employee’s exercise of a workplace right unless the Company proves otherwise. In this case, the Company failed to prove that the termination was due to reason(s) “that did not include as a substantial and operative factor [the employee] having exercised her workplace rights.” The relevant workplace right was the employee making complaints about her employment, including a desire to not be contacted outside of work hours via her personal email ad...

20 December 2018